9911796707
TMI Blog2024 (11) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... aws of India. (ii) Arbitration agreements executed after 06.09.2012 where the seat of arbitration is outside India, Part I of the Act, 1996 and the provisions thereunder will not be applicable and would fall beyond the jurisdiction of Indian courts. (iii) Even those arbitration agreements that have been executed prior to 06.09.2012 Part I of the Act, 1996 will not be applicable, if its application has been excluded by the parties in the arbitration agreement either explicitly by designating the seat of arbitration outside India or implicitly by choosing the law governing the agreement to be any other law other than Indian law. (iv) The moment seat is determined, it would be akin to an exclusive jurisdiction clause whereby only the jurisdictional courts of that seat alone will have the jurisdiction to regulate the arbitral proceedings. The notional doctrine of concurrent jurisdiction has been expressly rejected and overruled by this Court in its subsequent decisions. (v) The Closest Connection Test for determining the seat of arbitration by identifying the law with which the agreement to arbitrate has its closest and most real connection is no longer a viable criterion for determina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... connection test may be more suitable for determining the seat of arbitration. (x) Where two or more possible places that have been designated in the arbitration agreement either expressly or impliedly, equally appear to be the seat of arbitration, then in such cases the conflict may be resolved through recourse to the Doctrine of Forum Non Conveniens, and the seat be then determined based on which one of the possible places may be the most appropriate forum keeping in mind the nature of the agreement, the dispute at hand, the parties themselves and their intentions. The place most suited for the interests of all the parties and the ends of justice may be determined as the seat of arbitration. The present petition under Section 11 of the Act, 1996 is not maintainable as neither the seat of arbitration is India nor is the arbitration agreement governed by laws of India. The present petition filed by the petitioner fails and is hereby dismissed. - CJI. DR. DHANANJAYA Y. CHANDRACHUD, J.B. PARDIWALA AND MANOJ MISRA For the Appellant : Mr. R. Sathish, AOR, Mr. Rajesh Kumar, Adv. Mr. Mohan Das K. K., Adv. Mr. Mathan Joseph, Adv. and Mrs. S. Geetha, Adv. For the Respondent(s) : Mr. Mudit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d consequent appointment of an arbitrator by this Court in terms of clauses 26 and 27 of the Consumer Distributorship Agreement respectively dated 09.11.2010 (hereinafter referred to as the Agreement ) entered into between the petitioner and the respondent herein. 2. The petitioner, M/s Arif Azim Co. Ltd. , is a company based in Afghanistan, having its registered office at 1st Floor, Zarnigar Hotel, Mohammed Jan Khan Watt, Kabul, Afghanistan and is inter-alia engaged in the business of distribution of handsets which are manufactured by the respondent no. 1 in the territory of Kabul, Afghanistan. The respondent no. 1, M/s Micromax Informatics FZE is a Free Zone Establishment company incorporated under the laws of United Arab Emirates having its office at 28, Shed No. 18, Technology Park, Free Trade Zone, Ras-Al-Khaimah, UAE. Whereas, the respondent no. 2, M/s Micromax India is a public limited company incorporated in India having its registered office at Block A, Plot No. 21/14, Naraina Industrial Area, Phase-II New Delhi. The respondent no. 1 company is a wholly owned subsidiary of the respondent no. 2 company with the same Board Members in both the companies, and together they are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Payment Terms. Unless credit terms have been expressly agreed by Micromax, payment for the Products shall be made through irrevocable and confirmed letter of credit (L/C) in full before physical delivery of the Products to Distributor (or Distributor s customer). Time for payment is of the essence and Micromax reserves the right to charge interest on sums overdue, on a day to day basis at the rate of 24% per annum. Such interest shall be payable on demand. 5.4.2. Payments not received by Micromax as per the payment terms shall constitute a default by the Distributor. Micromax shall have the right to invoke the bank guarantee furnished by the Distributor for securing payments in case of default. Distributor agrees not to seek any adjustments, set-off of any other amounts outstanding to Micromax in respect of the bank guarantee nor counter claim from Micromax. xxx xxx xxx 23. ENTIRE AGREEMENT 23.1 This Agreement together with the Conditions of Sale, supersedes all prior agreements, arrangements, understandings and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof. 23.2 No addition to or modification of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by the petitioner to the respondent no. 1 company. 8. According to the petitioner, although the terms of the Distributorship Agreement mandated that both the delivery of handsets and the payments thereof be processed through the respondent no. 1 yet, interestingly, this time the handsets and the corresponding invoices for the same were issued by the respondent no. 2 instead. The respondent no. 2 supplied only 7300 handsets to the petitioner and issued a new invoice for the same amount i.e., $109,500/- (USD One hundred nine thousand five hundred), which was now payable directly to the respondent no. 2 instead. 9. It is the case of the petitioner herein that as on 12.05.2012, the petitioner company had a credit balance of $190,625/- (USD One hundred ninety six hundred twenty-five) with the respondent no. 1 company i.e., the running account of the respondent no. 1 reflected a sum of $190,625/- (USD One hundred ninety six hundred twenty-five) in favour of the petitioner company as outstanding credit. However, the respondent no. 2 whilst raising the invoice for supply of the aforesaid 7300 handsets, ignored the above mentioned credit balance of the petitioner and demanded payment, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with it in favour of the petitioner and further requested the petitioner to furnish its statement of account so that the two books of account may be reconciled for making the requisite payment. 13. Thereafter, several more correspondences took place between the petitioner and Shri Vikas Jain on behalf of the respondents through emails and texts inter-alia requesting for various documents and statements for the purpose of ascertaining the outstanding credit balance in favour of the petitioner. On 06.05.2022, the petitioner furnished the necessary statement of accounts to the respondents and requested for an update on the payment. 14. It appears from the material on record, that over the next 2-months several requests were made by the petitioner to the respondents for furnishing the outstanding credit balance in its favour and to make the requisite payment; however, the same were to no avail. Shri Vikas Jain, on behalf of the respondents time to time expressed his difficulty in ascertaining the exact figure for the outstanding credit balance, inter-alia citing that it was a very old running account and that the accountants responsible for maintaining the records had left the company, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f seat assumes greater significance as it acts as the indicator for both curial law as well as supervisory jurisdiction whereas venue is not associated with the jurisdiction. 3. The agreement, in so far the identity of Dubai courts, for jurisdiction, suffers from vagueness in that, it doesn t specify which of the courts of Dubai and the laws governing thereunder, shall have jurisdiction to hear the disputes among three different courts constituted, namely (i) The UAE Courts (the language is not English) (ii) Dubai International Financial Court (DIFC-Common law) (iii) Abu Dhabi Global court (ADGM-common law). Therefore, at the threshold, it is submitted that the 2nd part of clause 27 dealing with jurisdiction that .and shall be subject to the non-exclusive jurisdiction of the Dubai courts is a valid opting out of the exclusive jurisdiction of Dubai courts, as the parties have intended to avoid impracticable and inconvenient process and procedures as a result of subsequent amendments and modifications to the agreement involving 3countries, Afghanistan, India and UAE. This submission is discernible from a plain reading of various clauses in the subject of the agreement as well as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th Aluminium vs Kaiser Aluminium Technical services 2012 (9) SCC 552 at page 613 Para 107. (ii) When an agreement expressly designates the venue without any express reference to seat, given the various factors connecting the dispute to India in a contract executed in Kabul and wholly to be performed in India and Afghanistan and the absence of any foreign factors connecting the dispute to Dubai with its vagueness and uncertainty of what the parties had intended by their reference to the Dubai courts , the burden is on the respondents to establish that its terms constituted Dubai as the seat of arbitration. SUBMISSIONS ON BEHALF OF THE PETITIONER 6. The petitioner submits that the laws of the country with which the subject agreement was most closely connected are India and Afghanistan. The recitals in Sub- Cl. 22.4 (Interpretation Clause) of the Distribution agreement and the conduct of the parties reveal that the parties had attached very little importance to its local subsidiary FZE within the Micromax Group of companies that ultimately signed the Distributor agreement. It was formed to take advantage of concessional benefits in a free economic zone. The intention of the parties as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mine the courts that will have exclusive jurisdiction to oversee the arbitration proceedings. It was further held that the Seat normally carries with it the choice of that country s arbitration/curial law . In the present case, the parties have only agreed on Dubai as a Venue of arbitration and not the juridical seat of the arbitration. If Dubai is treated as seat of the arbitration, ipso jure, local laws will be applied. So much so, the stipulation regarding the governing law of the agreement -Laws of UAE - contained in the first part of Cl. 27 will not dictate, what the governing or controlling law would be, whereas the second part applies to both the substantive law and curial law, did not concede an exclusive jurisdiction to Dubai courts. Therefore on a matter of construction, Dubai cannot be the seat of Arbitration. 10. In Indus Mobile Distribution Pvt. Ltd. v. Datawind Innovations Pvt. Ltd. and Ors., (2017) 7 SCC 678 followed by M/s Emkay Global Financial Services Ltd. v. Girdhar Sondhi reiterated that seat in the context of arbitration proceedings is akin to an exclusive jurisdiction clause and would not vest the courts with seat if exclusive jurisdiction is not conceded. 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plementary agreements: means further agreement(s) as may be executed between the parties including such other commercial terms and conditions which are not incorporated in this agreement . Cl. 5.4 Payment .. Cl. 5.4.3 Micromax shall be entitled to deduct from any monies due to the Distributor any sums owed by Distributor to Micromax Unquote Cl. 22 Interpretation 22.4. references to Micromax shall be deemed to include reference to affiliates of Micromax where the context so requires . 24. Assignment - Micromax may assign or otherwise transfer this Agreement or any of its rights and obligations hereunder whether in whole or in part ..Unquote. 12.5 Acting upon the supplementary terms, the petitioner made a payment of $109500 by SWIFT to Micromax Inc. in Bombay. (page 64 Annexure P7). In juxtaposition, curated details of the two emails originating from Sh. Vikash Jain (deponent in the counter) who is the Executive Director of Micromax FZE (at page 62 Annex P-4) and an authorised representative of Micromax Inc. is given below: Date: 11 December, 2012 Dear Ali Bhai, Please find attached your debit balance to Micromax, India. Also sending a credit balance statement from FZE, Would appreci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and Conciliation rules. 5. Clause 27 of the Distributor Agreement (Ann. P-1, @Pg. 49 (Pdf Pg. 78 of Petition) specifically provides that governing law to be exclusively of UAE. 6. There is clear intent between the parties that Dubai shall be the seat of Arbitration and the venue in the present case has to be construed as seat of arbitration. 7. Section 2(2) of the Act with respect to the applicability of Part-1 stipulate that Section 11 of the Act has no application to arbitrations seated outside India. Thus, this a an arbitration seated outside India and Part-1 of the Act would have no applicability. 8. An International Commercial Arbitration in terms of Section 2(f) to attract the applicability of Section 11 for exercise of power of appointment of Arbitrator by this Hon ble Court mandates that at least one party should be an individual or a body corporate in India and the arbitration agreement should compulsorily provide for seat of Arbitration in India. Admittedly neither of the Parties are individuals or body corporates in India nor the Distributor Agreement provides for arbitration seat in India. 9. Reliance is placed on the two Judgements of this Hon ble Court: i. Mankatsu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gorically stated that the accounts of both companies are separate and there are sums receivable in Micromax Informatics Ltd. (India). 15. Even assuming though not admitting that the transactions with Micromax India were under the Distributor Agreement then too, the terms of the Distributor Agreement with respect to territory, rules of arbitration, governing law, jurisdiction and other terms of agreement would remain same and cannot be considered to be varied. The Distributor Agreement in Clause 23.2 (Ann. P-1 at Pg. 48) (PDF Pg 77) stipulates that no addition to or modification of any provision of this agreement shall be binding unless made by a written instrument signed by duly authorized representative of each of the parties. In view of the above, it is most respectfully prayed that the present Petition may kindly be dismissed. C. ISSUES FOR DETERMINATION 20. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the following questions of law fall for our consideration: - I. Whether, the present petition under Section 11 of the Act, 1996 is maintainable? II. Whether, Part I of the Act, 1996 is applicable to the arbitration cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of goods, other property or documents. 25. When the Act, 1996 was enacted replacing the earlier Act, 1940, a new provision of Section 20 was inserted by the legislature which was absent in the earlier Act, 1940. The said provision reads as under: - 20. Place of arbitration. (1) The parties are free to agree on the place of arbitration. (2) Failing any agreement referred to in sub-section (1), the place of arbitration shall be determined by the Arbitral Tribunal having regard to the circumstances of the case, including the convenience of the parties. (3) Notwithstanding sub-section (1) or sub-section (2), the Arbitral Tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of documents, goods or other property. 26. A cursory reading of the aforesaid provision would reveal that it is a replication of Article 20 of the UNCITRAL Model Law whereunder, the place or seat of arbitration has been given pride and primacy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is in India occurring in Section 2(2) of the Act and in which situations is the said Part applicable in order to enable this Court to exercise its powers under Section 11 to appoint an arbitrator. a. Pre-BALCO Regime. 29. In National Thermal Power Corporation v. Singer Company Ors. reported in (1992) 3 SCC 551, although the award which was the subject- matter of the said case had been challenged under the then Act, 1940 yet the observations made therein by this Court in regards the applicability of the Act, 1940 are significant insofar as the Act, 1996 is concerned. In the aforesaid case, the question before this Court was whether the Act, 1940 was applicable to the arbitration agreement between the parties therein. This Court held as follows: - (i) First, it held that the choice of law governing the arbitration agreement i.e., the lex arbitri would determine which system of law would be applicable. It observed that since the arbitration agreement therein was to be governed by Indian laws, the Act, 1940 would be applicable to such arbitration proceedings. The relevant observations read as under: - 2. The National Thermal Power Corporation (the NTPC ) appeals from the judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration. The observations contained in that judgment do not support the contention urged on behalf of the Singer that merely because London was designated to be the place of arbitration, the law which governed arbitration was different from the law expressly chosen by the parties as the proper law of the contract. xxx 51. In sum, it may be stated that the law expressly chosen by the parties in respect of all matters arising under their contract, which must necessarily include the agreement contained in the arbitration clause, being Indian law and the exclusive jurisdiction of the courts in Delhi having been expressly recognised by the parties to the contract in all matters arising under it, and the contract being most intimately associated with India, the proper law of arbitration and the competent courts are both exclusively Indian [...] xxx 54. The Delhi High Court was wrong in treating the award in question as a foreign award. The Foreign Awards Act has no application to the award by reason of the specific exclusion contained in Section 9 of that Act. The award is governed by the laws in force in India, including the Arbitration Act, 1940. Accordingly, we set aside the impugned j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those rules, being in many respects self-contained or self-regulating and constituting a contractual code of procedure, will govern the conduct of the arbitration, except insofar as they conflict with the mandatory requirements of the proper law of arbitration, or of the procedural law of the seat of arbitration. [See the observation of Kerr, LJ. In Bank Mellat v. Helliniki Techniki SA. See also Craig, Park and Paulsson, International Chamber of Commerce Arbitration, 2nd edn. (1990).] To such an extent the appropriate courts of the seat of arbitration, which in the present case are the competent English courts, will have jurisdiction in respect of procedural matters concerning the conduct of arbitration. But the overriding principle is that the courts of the country whose substantive laws govern the arbitration agreement are the competent courts in respect of all matters arising under the arbitration agreement, and the jurisdiction exercised by the courts of the seat of arbitration is merely concurrent and not exclusive and strictly limited to matters of procedure. All other matters in respect of the arbitration agreement fall within the exclusive competence of the courts of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration as a compromise or adjustment of a suit by any court before which the suit is pending. 17. [...] By reason of Section 9(b), the 1961 Act does not apply to any award made on an arbitration agreement governed by the law of India. The 1961 Act, therefore, does not apply to the arbitration agreement between the appellant and the first respondent. The 1940 Act applies to it and, by reason of Section 14(2) thereof, the courts in India are entitled to receive the award made by the second respondent. We must add in the interests of completeness that it is not the case of the appellant that the High Court at Bombay lacked the territorial jurisdiction to do so. (Emphasis supplied) (ii) Secondly, it reiterated that, where the parties have chosen both the law governing the arbitration agreement i.e., lex arbitri and the law governing the arbitrator s procedure and conduct thereof i.e., the curial law, it would confer concurrent jurisdiction whereby the competent courts under the curial law will have jurisdiction to administer the procedure of arbitration and the competent courts under the law governing the arbitration agreement will have jurisdiction to administer the performance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bitrator. It is not governed by the curial or procedural law that governed the procedure that the arbitrator followed in the conduct of the arbitration. xxx 15. We think that our conclusion that the curial law does not apply to the filing of an award in court must, accordingly, hold good. We find support for the conclusion in the extracts from Mustill and Boyd which we have quoted earlier. Where the law governing the conduct of the reference is different from the law governing the underlying arbitration agreement, the court looks to the arbitration agreement to see if the dispute is arbitrable, then to the curial law to see how the reference should be conducted, and then returns to the first law in order to give effect to the resulting award . (Emphasis supplied) 32. The aforesaid Doctrine of Concurrent Jurisdiction in Arbitration was further expanded by this Court in Bhatia International v. Bulk Trading S.A. reported in (2002) 4 SCC 105, wherein this Court examined the scope of Section 2(2) viz-a-viz Section 2(1)(e) (f) of the Act, 1996 and held that Part I of the said Act applies to both (i) domestic arbitrations that take place in India and (ii) international commercial arbitrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... convention country. xxx 20. Section 2(1)(e) defines court [...] A court is one which would otherwise have jurisdiction in respect of the subject-matter. The definition does not provide that the courts in India will not have jurisdiction if an international commercial arbitration takes place outside India. Courts in India would have jurisdiction even in respect of an international commercial arbitration. As stated above, an ouster of jurisdiction cannot be implied. An ouster of jurisdiction has to be express. (Emphasis supplied) (ii) Secondly, this Court observed that Section 2 sub-section (2) of the Act, 1996 nowhere specifies that Part I will only apply where the place of arbitration is in India, nor does it provide that Part I shall not apply where the place of arbitration is not in India. Thus, by not specifically providing in black and white, whether Part I of the Act, 1996 would apply to international commercial arbitrations held outside India, the legislature s intention appears to be to allow the parties the freedom to choose whether Part I or any of its provisions therein would apply or not by an express or implied agreement. The relevant observations read as under: - 21. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5) of Section 2, which the legislature has purposely omitted to add viz. subject to provision of sub-section (2) . However read in the manner set out herein above there would also be no conflict between sub-section (2) of Section 2 and sub-sections (4) and/or (5) of Section 2. (Emphasis supplied) Thus, this Court held that Part I of the Act, 1996 would apply to all arbitrations. Where such arbitration is held in India, the provisions of Part I would be compulsorily applicable, and parties may deviate only to the extent permitted by the derogable provisions of Part I. In cases of international commercial arbitrations held out of India the provisions of Part I would apply unless the parties by agreement, express or implied, exclude all or any of its provisions. In that case the laws or rules agreed upon by the parties would prevail. Any provision, in Part I, which is contrary to or excluded by that law or rules will not apply. The operative portion reads as under: - 32. To conclude, we hold that the provisions of Part I would apply to all arbitrations and to all proceedings relating thereto. Where such arbitration is held in India the provisions of Part I would compulsorily apply and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ins not only the submissions of Mr Sen, who appeared for Bhatia International therein but also the ultimate conclusion of the Bench. He reiterated that the Court concluded: 26. Thus Section 44 (in Chapter I) and Section 53 (in Chapter II) define foreign awards, as being awards covered by arbitrations under the New York Convention and the Geneva Convention respectively. Part II then contains provisions for enforcement of foreign awards which necessarily would be different. For that reason special provisions for enforcement of foreign awards are made in Part II. To the extent that Part II provides a separate definition of an arbitral award and separate provisions for enforcement of foreign awards, the provisions in Part I dealing with these aspects will not apply to such foreign awards. It must immediately be clarified that the arbitration not having taken place in India, all or some of the provisions of Part I may also get excluded by an express or implied agreement of parties. But if not so excluded the provisions of Part I will also apply to foreign awards . The opening words of Sections 45 and 54, which are in Part II, read notwithstanding anything contained in Part I . Such a no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdiction in terms of Section 2(e) of the said Act. 35. Similarly, in Indtel Technical Services (P) Ltd. v. W.S. Atkins Rail Ltd., reported in (2008) 10 SCC 308, this Court reiterated that Part I of the Act, 1996 applies to both domestic and international arbitrations, notwithstanding the provisions of Section 2(2) of the said Act and irrespective of whether the seat of arbitration is in India or not. It further observed that the courts of the country, whose substantive laws govern the arbitration agreement, are competent courts in respect of all matters arising under the arbitration agreement, and the jurisdiction exercised by the courts of the seat of arbitration is merely concurrent and not exclusive and strictly limited to the matter of procedure. Thus, an application under Section 11 for appointment of arbitrator in India was held to be maintainable though the seat of arbitration was in England. The relevant observations read as under: - 16. The submissions made on behalf of Bhatia International were accepted by this Court upon a finding that, although, Section 2(2) of the Arbitration and Conciliation Act, 1996, provides that Part I of the Act would apply where the place of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns and views of the authorities in this case is the fact that in Bhatia International [(2002) 4 SCC 105] this Court laid down the proposition that notwithstanding the provisions of Section 2(2) of the Arbitration and Conciliation Act, 1996, indicating that Part I of the said Act would apply where the place of arbitration is in India, even in respect of international commercial agreements, which are to be governed by the laws of another country, the parties would be entitled to invoke the provisions of Part I of the aforesaid Act and consequently the application made under Section 11 thereof would be maintainable. 37. The decision in Bhatia International case [(2002) 4 SCC 105 has been rendered by a Bench of three Judges and governs the scope of the application under consideration, as it clearly lays down that the provisions of Part I of the Arbitration and Conciliation Act, 1996, would be equally applicable to international commercial arbitrations held outside India, unless any of the said provisions are excluded by agreement between the parties expressly or by implication, which is not so in the instant case . (Emphasis supplied) b. Post BALCO Regime. 36. The correctness of the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lst interpreting an Act or a provision in the Act. xxx 67. We are unable to accept the submission of the learned counsel for the appellants that the omission of the word only from Section 2(2) indicates that applicability of Part I of the Arbitration Act, 1996 is not limited to the arbitrations that take place in India. We are also unable to accept that Section 2(2) would make Part I applicable even to arbitrations which take place outside India. In our opinion, a plain reading of Section 2(2) makes it clear that Part I is limited in its application to arbitrations which take place in India. We are in agreement with the submissions made by the learned counsel for the respondents, and the interveners in support of the respondents, that Parliament by limiting the applicability of Part I to arbitrations which take place in India has expressed a legislative declaration. It has clearly given recognition to the territorial principle. Necessarily therefore, it has enacted that Part I of the Arbitration Act, 1996 applies to arbitrations having their place/seat in India. xxx 70. [...] Therefore, the Arbitration Act, 1996 consolidates the law on domestic arbitrations by incorporating the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is subject-matter centric and not exclusively seat centric . It observed that the words subject-matter of the arbitration and subject-matter of the suit occurring in Section 2(1)(e) should not be conflated as the former confers jurisdiction on the basis of cause of action while the latter confers jurisdiction on the basis of place of arbitration , thus, the Act, 1996 is not merely subject-matter centric . It observed that although the legislature by use of the words subject-matter of arbitration in addition to subject-matter of the suit under Section 2(1)(e) has conferred jurisdiction to two-courts i.e., the court of jurisdiction over the cause of action and the court of the seat of the arbitration process, yet the expression subject-matter of suit occurring in Section 2(1)(e) is confined only to Part I of the Act, 1996, and thus, wherever it is found that the seat or place of arbitration is outside India, Part I would be inapplicable and the jurisdiction then will be exclusively seat centric . In other words, where the seat of arbitration is outside India, only those courts situated where the subject-matter of arbitration lies i.e., at the place of arbitration will be competent to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere the cause of action is located and the courts where the arbitration takes place. This was necessary as on many occasions the agreement may provide for a seat of arbitration at a place which would be neutral to both the parties. Therefore, the courts where the arbitration takes place would be required to exercise supervisory control over the arbitral process. For example, if the arbitration is held in Delhi, where neither of the parties are from Delhi, (Delhi having been chosen as a neutral place as between a party from Mumbai and the other from Kolkata) and the tribunal sitting in Delhi passes an interim order under Section 17 of the Arbitration Act, 1996, the appeal against such an interim order under Section 37 must lie to the courts of Delhi being the courts having supervisory jurisdiction over the arbitration proceedings and the tribunal. This would be irrespective of the fact that the obligations to be performed under the contract were to be performed either at Mumbai or at Kolkata, and only arbitration is to take place in Delhi. In such circumstances, both the courts would have jurisdiction i.e. the court within whose jurisdiction the subject-matter of the suit is situate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the chaos that might ensue upon arbitrations agreements and proceedings thereto which are already underway pursuant to the ratio of Bhatia International (supra) and Venture Global (supra), this Court held that the law declared by it will only apply prospectively to all arbitration agreements that have been executed on or after 06.09.2012 i.e., the date of pronouncement. This Court ultimately summed up its findings with the following conclusions reproduced below: - Conclusion 194. In view of the above discussion, we are of the considered opinion that the Arbitration Act, 1996 has accepted the territoriality principle which has been adopted the Uncitral Model Law. Section 2(2) makes a declaration that Part I of the Arbitration Act, 1996 shall apply to all arbitrations which take place within India. We are of the considered opinion that Part I of the Arbitration Act, 1996 would have no application to international commercial arbitration held outside India. Therefore, such awards would only be subject to the jurisdiction of the Indian courts when the same are sought to be enforced in India in accordance with the provisions contained in Part II of the Arbitration Act, 1996. In our opin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m a conjoint reading of BALCO (supra) and Bhatia International (supra) is that where the court comes to a determination that the juridical seat is outside India or where law other than Indian law governs the arbitration agreement, Part I of the Arbitration Act, 1996 would be excluded by necessary implication and the doctrine of concurrent jurisdiction will not apply irrespective of whether the arbitration agreement pre-dates BALCO (supra) or not. The relevant observations read as under: - 13. It can be seen that this Court in Singer case did not give effect to the difference between the substantive law of the contract and the law that governed the arbitration. Therefore, since a construction of Section 9(b) of the Foreign Awards Act led to the aforesaid situation and led to the doctrine of concurrent jurisdiction, the 1996 Act, while enacting Section 9(a) of the repealed Foreign Awards Act, 1961, in Section 51 thereof, was careful enough to omit Section 9(b) of the 1961 Act which, as stated herein above, excluded the Foreign Awards Act from applying to any award made on arbitration agreements governed by the law of India. 14. This being the case, the theory of concurrent jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is excluded by necessary implication if it is found that on the facts of a case either the juridical seat of the arbitration is outside India or the law governing the arbitration agreement is a law other than Indian law. xxx 21. The last paragraph of BALCO judgment has now to be read with two caveats, both emanating from para 32 of Bhatia International itself that where the Court comes to a determination that the juridical seat is outside India or where law other than Indian law governs the arbitration agreement, Part I of the Arbitration Act, 1996 would be excluded by necessary implication. Therefore, even in the cases governed by the Bhatia principle, it is only those cases in which agreements stipulate that the seat of the arbitration is in India or on whose facts a judgment cannot be reached on the seat of the arbitration as being outside India that would continue to be governed by the Bhatia principle. Also, it is only those agreements which stipulate or can be read to stipulate that the law governing the arbitration agreement is Indian law which would continue to be governed by the Bhatia rule. (Emphasis supplied) 39. Thus, the legal position that emerges from a conspectus o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Venue versus Seat of Arbitration. 41. Before proceeding further with the analysis, it would be apposite to first understand what is the criterion or test for determining the seat or place of arbitration. a. Closest Connection Test Place of Arbitration to be ascertained by the Law governing the Arbitration Agreement and not the Place of Arbitration. 42. The closest connection test is a legal principle used to determine which law governs an arbitration agreement when the parties have not expressly chosen a governing law or where there is a conflict between the choice of law by the parties. This test seeks to identify the jurisdiction that has the closest relationship with the subject-matter in question or simplicter the dispute between the parties by identifying which system of law has the closest and most real connection with the transaction or dispute between the parties. 43. The Closest Connection Test was first applied by this Court in its decision in NTPC (supra). In the aforesaid case, the main substantive contract therein had been executed in India, the general terms and conditions appended to the main contract stipulated that the said contract shall be construed and gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the arbitration agreement forms part and parcel of such contract, then the substantive law of such contract will govern the arbitration agreement, and by its extension the place of arbitration. The relevant observations read as under: - 24. The validity, effect and interpretation of the arbitration agreement are governed by its proper law. Such law will decide whether the arbitration clause is wide enough to cover the dispute between the parties. Such law will also ordinarily decide whether the arbitration clause binds the parties even when one of them alleges that the contract is void, or voidable or illegal or that such contract has been discharged by breach or frustration. (See Heyman v. Darwins Ltd.) The proper law of arbitration will also decide whether the arbitration clause would equally apply to a different contract between the same parties or between one of those parties and a third party. 25. The parties have the freedom to choose the law governing an international commercial arbitration agreement. They may choose the substantive law governing the arbitration agreement as well as the procedural law governing the conduct of the arbitration. Such choice is exercised eith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 The Judge has to determine the proper law for the parties in such circumstances by putting himself in the place of a reasonable man . He has to determine the intention of the parties by asking himself how a just and reasonable person would have regarded the problem [...] 17. For this purpose the place where the contract was made, the form and object of the contract, the place of performance, the place of residence or business of the parties, reference to the courts having jurisdiction and such other links are examined by the courts to determine the system of law with which the transaction has its closest and most real connection. (Emphasis supplied) (iii) Lastly, the choice of place of arbitration or selection of courts of particular country for submission to its jurisdiction, will have little relevance in determining the system of law to govern the arbitration agreement and may not be sufficient to draw an inference as to the intention of parties to regard the chosen place as the proper law of arbitration unless it is supported by the law governing the contract or in its absence if there is a significant link with such place that gives a strong indication that the law governing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. It further observed that since London had no significant connection with the contract or the parties except being a neutral place that had been chosen only because of the rules of the International Chamber of Commerce, it held that, the stipulation of such rules merely governed the procedure and conduct of the arbitration and could not in any manner supersede the overriding jurisdiction and control of the Indian law and the Indian courts that governed the main contract including the arbitration clause that formed part and parcel of the main contract. The aforesaid relevant observations read as under: - 26. [...]Where, however, the parties have, as in the instant case, stipulated that the arbitration between them will be conducted in accordance with the ICC Rules, those rules, being in many respects self-contained or self-regulating and constituting a contractual code of procedure, will govern the conduct of the arbitration, except insofar as they conflict with the mandatory requirements of the proper law of arbitration, or of the procedural law of the seat of arbitration. 27. The proper law of the contract in the present case being expressly stipulated to be the laws in force in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost intimately associated with India, the proper law of arbitration and the competent courts are both exclusively Indian, while matters of procedure connected with the conduct of arbitration are left to be regulated by the contractually chosen rules of the ICC to the extent that such rules are not in conflict with the public policy and the mandatory requirements of the proper law and of the law of the place of arbitration. The Foreign Awards Act, 1961 has no application to the award in question which has been made on an arbitration agreement governed by the law of India. xxx 53 . All substantive rights arising under the agreement including that which is contained in the arbitration clause are, in our view, governed by the laws of India. In respect of the actual conduct of arbitration, the procedural law of England may be applicable to the extent that the ICC Rules are insufficient or repugnant to the public policy or other mandatory provisions of the laws in force in England. Nevertheless, the jurisdiction exercisable by the English courts and the applicability of the laws of that country in procedural matters must be viewed as concurrent and consistent with the jurisdiction of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould make the ratio of law laid down in Naviera Amazonica Peruana S.A. applicable in the present case. Applying the closest and the intimate connection to arbitration, it would be seen that the parties had agreed that the provisions of the Indian Arbitration Act, 1996 would apply to the arbitration proceedings. By making such a choice, the parties have made the curial law provisions contained in Chapters III, IV, V and VI of the Indian Arbitration Act, 1996 applicable. Even Dr Singhvi had submitted that Chapters III, IV, V and VI would apply if the seat of arbitration is in India. By choosing that Part I of the Indian Arbitration Act, 1996 would apply, the parties have made a choice that the seat of arbitration would be in India. Section 2(2) of the Indian Arbitration Act, 1996 provides that Part I shall apply where the place of arbitration is in India . In Balco, it has been categorically held that Part I of the Indian Arbitration Act, 1996, will have no application, if the seat of arbitration is not in India. In the present case, London is mentioned only as a venue of arbitration which, in our opinion, in the facts of this case cannot be read as the seat of arbitration. 99. We ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utes, having such a close and intimate connection with India. In contrast, London is described only as a venue which Dr Singhvi says would be the natural forum. xxx 135. In the present case, even though the venue of arbitration proceedings has been fixed in London, it cannot be presumed that the parties have intended the seat to be also in London. In an international commercial arbitration, venue can often be different from the seat of arbitration. In such circumstances, the hearing of the arbitration will be conducted at the venue fixed by the parties, but this would not bring about a change in the seat of the arbitration. [...] (Emphasis supplied) 48. What can be discerned from the above decision of this Court in Enercon (supra) is that for determining the seat of arbitration the closest connection test involves identifying the law with which the agreement to arbitrate has its closest and most real connection. Where the parties have expressly or impliedly provided the law governing the substantive contract, the arbitration agreement and the curial law, the law with which the agreement to arbitrate has its closest and most real connection would be the law of the seat of arbitratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on consideration of the entire matter, it was observed in Sulam rica that In these circumstances it is clear to me that the law with which the agreement to arbitrate has its closest and most real connection is the law of the seat of arbitration, namely, the law of England . It was thereafter concluded by the High Court that the English law is the proper law of the agreement to arbitrate. xxx 133. We also do not find any merit in the submission of Dr Singhvi that the close and the most intimate connection test is wholly irrelevant in this case. It is true that the parties have specified all the three laws. But the Court in these proceedings is required to determine the seat of the arbitration, as the respondents have taken the plea that the term venue in the arbitration clause actually makes a reference to the seat of the arbitration. (Emphasis supplied) 49. Thus, with the decision of Enercon (supra), the stage is now set to examine the decision of Roger Shashoua (1) (supra) to trace the evolution of the Shashoua Principle. b. The Shashoua Principle Venue to be construed as Seat 50. In Roger Shashoua (1) a Queen s Bench Division (Commercial Court) of the England Wales High Court hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs to be in London for the sake of convenience and there is indeed no suggestion that London would be convenient in itself, in the light of the governing law of the Shareholders Agreement, the nature and terms of that agreement and the nature of the disputes which were likely to arise and which did in fact arise (although the first claimant is resident in the UK). 28. The defendant relies upon the nature of the Shareholders Agreement, the provision for the proper law of the agreement to be that of India, the application of the ICC Rules and the Interim Measures Application made by the claimants in India as pointing to Indian law as, not only the curial law, but also that of the agreement to arbitrate. Furthermore reliance is placed on clause 14.5 of the Shareholders Agreement which provides that each party is to bear its own costs of the arbitration, which, on its face, is inconsistent with section 60 of the Arbitration Act. It is said that this conflict, when seen objectively, must militate against the application of English law to the arbitration and to the seat being London. In my judgment none of these matters will bear the weight which the defendant seeks to put upon them. 29. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The relevant observations read as under: - 46. As stated earlier, in Shashoua Cooke, J., in the course of analysis, held that London arbitration is a well-known phenomenon which is often chosen by foreign nationals with a different law, such as the law of New York, governing the substantive rights of the parties and it is because of the legislative framework and supervisory powers of the courts here which many parties are keen to adopt. The learned Judge has further held that when there is an express designation of the arbitration venue as London and no designation of any alternative place as the seat, combined with a supranational body of rules governing the arbitration and no other significant contrary indicia, the inexorable conclusion is that London is the juridical seat and English law the curial law. xxx 54. We had earlier extracted extensively from the said judgment, as we find, the Court after adverting to various aspects, has categorically held that the High Court had not followed the Shashoua principle. The various decisions referred to in Enercon (India) Ltd., the analysis made and the propositions deduced leads to an indubitable conclusion that Shashoua principle has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench accepted the Rules of ICC, Paris which is supranational body of Rules as has been noted by Cooke, J. and that is how it has accepted that the parties have not simply provided for the location of hearings to be in London. To elaborate, the distinction between the venue and the seat remains. But when a court finds that there is prescription for venue and something else, it has to be adjudged on the facts of each case to determine the juridical seat. As in the instant case, the agreement in question has been interpreted and it has been held that London is not mentioned as the mere location but the courts in London will have the jurisdiction, another interpretative perception as projected by the learned Senior Counsel is unacceptable. xxx 74. It is apposite to note that the said decision has been discussed at length in Union of India v. Reliance Industries Ltd. The Court, in fact, reproduced the arbitration clause in Singer Co. and referred to the analysis made in the judgment and noted that notwithstanding the award, it was a foreign award, since the substantive law of the contract was Indian law and the arbitration law was part of the contract, the arbitration clause would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted as venue in the arbitration agreement is coupled with there being no other significant contrary indicia that such place is merely a venue, then such place would be construed as the seat of the arbitral proceedings. This Court also added that the international context where a supranational body of rules is to govern the arbitration in or in the national context the laws of a particular country then this would further be an indicia that the venue designated in the arbitration agreement is really the seat of arbitration. The relevant observations read as under: - 82. On a conspectus of the aforesaid judgments, it may be concluded that whenever there is the designation of a place of arbitration in an arbitration clause as being the venue of the arbitration proceedings, the expression arbitration proceedings would make it clear that the venue is really the seat of the arbitral proceedings, as the aforesaid expression does not include just one or more individual or particular hearing, but the arbitration proceedings as a whole, including the making of an award at that place. This language has to be contrasted with language such as tribunals are to meet or have witnesses, experts or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 and it was held that where the reference to a place in the arbitration agreement is not simply as venue and rather a reference as place for final resolution by arbitration, such place shall be construed as the seat of arbitration. The relevant observations read as under:- 20. It is well settled that seat of arbitration and venue of arbitration cannot be used interchangeably. It has also been established that mere expression place of arbitration cannot be the basis to determine the intention of the parties that they have intended that place as the seat of arbitration. The intention of the parties as to the seat should be determined from other clauses in the agreement and the conduct of the parties. 21. In the present case, the arbitration agreement entered into between the parties provides Hong Kong as the place of arbitration. The agreement between the parties choosing Hong Kong as the place of arbitration by itself will not lead to the conclusion that the parties have chosen Hong Kong as the seat of arbitration. The words, the place of arbitration shall be Hong Kong , have to be read along with Clause 17.2. Clause 17.2 provides that any dispute, controversy, difference arising o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... UAE has not been designated merely as a venue but rather as the juridical seat of arbitration in terms of clause 26 of the Distributorship Agreement. 57. We are further reinforced in our findings in light of the Shashoua Principle as laid down in Roger Shashoua (1) (supra) wherein it was held that more often than not the law of the arbitration agreement and by it the seat of the arbitration coincides with the curial law. Since the parties herein have expressly chosen the curial law of arbitration to be the UAE Arbitration and Conciliation rules, there is no second opinion that the seat of arbitration in the underlying Distributorship Agreement is Dubai, UAE and not India. 58. It has been contended by the petitioner herein that, no one fixed place or seat of arbitration has been designated under the Distributorship Agreement since Clause 27 of the aforesaid Agreement stipulates that it shall be subject to the non-exclusive jurisdiction of the Dubai Courts. It has been submitted that since the parties had agreed not to confer exclusive jurisdiction to courts in Dubai, neither of the parties to the agreement construed the arbitration clause as designating courts in Dubai as the seat o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xclusive jurisdiction for purposes of regulating arbitral proceedings arising out of the agreement between the parties. 20. It is well settled that where more than one court has jurisdiction, it is open for the parties to exclude all other courts. (Emphasis supplied) 61. In Swastik Gases (P) Ltd. v. Indian Oil Corpn. Ltd., reported in (2013) 9 SCC 32, it was held that in a jurisdictional clause even if words like alone , only , exclusive or exclusive jurisdiction have not been used it would make no material difference as to the exclusive nature of the jurisdiction conferred by such clause. This Court observed that this is because, the moment a jurisdiction is conferred, the maxim expressio unius est exclusio alterius i.e., expression of one is the exclusion of another comes into play, and it would be as if its an exclusive clause if there is nothing to indicate the contrary. The relevant observations read as under: - 31. In the instant case, the appellant does not dispute that part of cause of action has arisen in Kolkata. What appellant says is that part of cause of action has also arisen in Jaipur and, therefore, the Chief Justice of the Rajasthan High Court or the designate Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourts in Salem, in all other similar cases an inference was drawn (explicitly or implicitly) that the parties intended the implementation of the exclusion clause as it reads notwithstanding the absence of the words only , alone or exclusively and the like. The reason for this is quite obvious. The parties would not have included the ouster clause in their agreement were it not to carry any meaning at all. The very fact that the ouster clause is included in the agreement between the parties conveys their clear intention to exclude the jurisdiction of courts other than those mentioned in the clause concerned. Conversely, if the parties had intended that all courts where the cause of action or a part thereof had arisen would continue to have jurisdiction over the dispute, the exclusion clause would not have found a place in the agreement between the parties. (Emphasis supplied) 62. As discussed in the foregoing paragraphs, since the Distributorship Agreement already designates Dubai, UAE as the seat of arbitration, the same would be akin to an exclusive jurisdiction clause with only the courts in Dubai, UAE having the jurisdiction over such arbitration in view of the decision of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to the jurisdiction of Dubai Courts or any other courts. The said clause in no manner can be construed to mean that there exists no seat or situs of arbitration and that parties merely because there is no court that has been conferred exclusive jurisdiction in respect of the said agreement. It is the seat of arbitration which determines which court will have exclusive jurisdiction and not vice-versa. a. Doctrine of Forum non Conveniens 65. The aforesaid may be looked at from one another angle, through the doctrine of forum non conveniens. The term forum non conveniens is a latin term which means an inconvenient forum and provides that a court which otherwise might have jurisdiction may decline jurisdiction over a case if there is a more appropriate forum available to the parties, and is typically invoked in respect of cross-border subject-matters that are amenable to multiple concurrent jurisdictions. Depending upon the nature of the dispute, the subject-matter involves and the parties thereto, the courts by invoking this doctrine proceed to determine which one of the available forums may be more convenient and fair for entertaining and adjudicating the matter. 66. In order to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ires that the trial should nevertheless take place in England. While the plaintiff s choice of forum is significant, it is not decisive; the court must weigh it against factors that might inconvenience the defendant or make the chosen forum less appropriate for the interests of justice. If the defendant shows another available forum is more suitable, then the court should only retain jurisdiction if the plaintiff can show that substantial justice would not be achieved in the alternative forum. In determining whether there is another forum which is more appropriate for the trial of the action, the court will look for the forum with which the action has the most real and substantial connection. (Emphasis supplied) 68. In Modi Entertainment Network v. W.S.G. Cricket Pte. Ltd. reported in (2003) 4 SCC 341, this Court observed that while construing a non- exclusive jurisdiction clause, where more forums than one are available, the court in exercise of its discretion will examine as to which is the appropriate forum (forum conveniens) having regard to the convenience of the parties. It further observed that Where parties have agreed, under a non- exclusive jurisdiction clause, to approac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve in an exceptional case for good and sufficient reasons, with a view to prevent injustice in circumstances such as which permit a contracting party to be relieved of the burden of the contract; or since the date of the contract the circumstances or subsequent events have made it impossible for the party seeking injunction to prosecute the case in the court of choice because the essence of the jurisdiction of the court does not exist or because of a vis major or force majeure and the like. (5) Where parties have agreed, under a non-exclusive jurisdiction clause, to approach a neutral foreign forum and be governed by the law applicable to it for the resolution of their disputes arising under the contract, ordinarily no anti-suit injunction will be granted in regard to proceedings in such a forum conveniens and favoured forum as it shall be presumed that the parties have thought over their convenience and all other relevant factors before submitting to the non-exclusive jurisdiction of the court of their choice which cannot be treated just as an alternative forum. (6) A party to the contract containing jurisdiction clause cannot normally be prevented from approaching the court of ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rbitration takes place in India i.e., where either (I) the seat of arbitration is in India OR (II) the law governing the arbitration agreement are the laws of India. (ii) Arbitration agreements executed after 06.09.2012 where the seat of arbitration is outside India, Part I of the Act, 1996 and the provisions thereunder will not be applicable and would fall beyond the jurisdiction of Indian courts. (iii) Even those arbitration agreements that have been executed prior to 06.09.2012 Part I of the Act, 1996 will not be applicable, if its application has been excluded by the parties in the arbitration agreement either explicitly by designating the seat of arbitration outside India or implicitly by choosing the law governing the agreement to be any other law other than Indian law. (iv) The moment seat is determined, it would be akin to an exclusive jurisdiction clause whereby only the jurisdictional courts of that seat alone will have the jurisdiction to regulate the arbitral proceedings. The notional doctrine of concurrent jurisdiction has been expressly rejected and overruled by this Court in its subsequent decisions. (v) The Closest Connection Test for determining the seat of arbitra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere there is no express or implied designation of a place of arbitration in the agreement either in the form of venue or curial law , there the closest connection test may be more suitable for determining the seat of arbitration. (x) Where two or more possible places that have been designated in the arbitration agreement either expressly or impliedly, equally appear to be the seat of arbitration, then in such cases the conflict may be resolved through recourse to the Doctrine of Forum Non Conveniens, and the seat be then determined based on which one of the possible places may be the most appropriate forum keeping in mind the nature of the agreement, the dispute at hand, the parties themselves and their intentions. The place most suited for the interests of all the parties and the ends of justice may be determined as the seat of arbitration. 72. Thus, for all the foregoing reasons, we have reached the conclusion that the present petition under Section 11 of the Act, 1996 is not maintainable as neither the seat of arbitration is India nor is the arbitration agreement governed by laws of India. 73. In the result, the present petition filed by the petitioner fails and is hereby dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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